Does a passenger traveling with the owner of a private vehicle have a reasonable expectation of privacy that is violated if the government surreptitiously installs a Global Positioning Satellite (“GPS”) device on the vehicle to monitor its movements?  That was the question presented to the Arizona Supreme Court in State v. Jean.  And it’s one that appears increasingly important as technological surveillance devices become cost effective for – and thus more widely used by – law enforcement.   

In a fractured opinion, the Court held that a passenger in a vehicle does have a reasonable expectation of privacy, and thus Fourth Amendment right, to be free from government’s continued GPS tracking of the vehicle’s movements. However, the Court declined to apply the exclusionary rule to prohibit the evidence obtained through the warrantless GPS tracking in this case, instead ruling that the good-faith exception applied.  

The facts were not disputed.  In February 2010, Appellant Emilio Jean rode in a commercial tractor-trailer from Georgia to Arizona with driver David Velez-Colon.  Velez-Colon owned the truck and the two men took turns driving.  State law enforcement officials became suspicious that the truck was being used to transport drugs and installed a GPS tracking device on the vehicle without obtaining a warrant.  Law enforcement then monitored the truck’s movements for three days, and assisted by the GPS location data, stopped the vehicle on its return from California to Arizona.  A search of the trailer revealed 2,140 pounds of marijuana.  

The State subsequently charged Jean (the passenger) with, among other things, transportation of marijuana.  Jean moved to suppress the drug evidence, arguing that that state’s warrantless use of the GPS tracking device violated his possessory and privacy rights under the Fourth and Fourteenth Amendments to the U.S Constitution and the Arizona Constitution’s privacy provisions.  The trial court denied the motion, and Jean was sentenced to a prison term of ten years.  The court of appeals affirmed.    

The Supreme Court first examined whether the warrantless GPS tracking violated Jean’s Fourth Amendment rights because it involved a trespass – the police physically attached a tracking device to the vehicle.  The Court concluded that, although the owner of a vehicle could challenge a government intrusion as a search under a trespass theory, a passenger could not because a passenger has no possessory interest in the vehicle, and thus no Fourth Amendment claim.  But that did not end the Fourth Amendment analysis.  

Observing that “GPS tracking is qualitatively different from visual surveillance,” the Court went on to hold that passengers traveling with the owner of a private vehicle do have a reasonable expectation of privacy that is invaded when the government surreptitiously and continually tracks the vehicle’s movements.  The Court distinguished these facts from cases in which other forms of warrantless surveillance in public spaces were upheld because of the precision of GPS, the technology’s ability to follow a subject whether they are in public or not, and its relatively low cost.    

Despite finding a Fourth Amendment violation, the Court declined to apply the exclusionary rule to prohibit the evidence, reasoning that “the search was conducted in objectively reasonable reliance” on existing case la. 

The case did not end well for Jean, but it did signal an important move for the Court, recognizing significant privacy interests in the face of new surveillance technologies.  This can have lasting consequences, as law enforcement increasingly relies on drone and other technologies. 

Additionally, although the Court declined to reach the question of whether Arizona’s Constitution provides a greater privacy protection than the Fourth Amendment, because it was not properly raised below, in an interesting concurrence, Justice Clint Bolick observed that “Americans enjoy the protections of not one constitution but fifty-one.” Justice Bolick went on to write that state constitutions can “provide greater protections of individual liberty and constraints on government power” than the U.S. Constitution, which is just a floor for the protection of rights.    

In light of Jean, Arizonans can be comforted that new surveillance technology will subject to close judicial review if that technology impairs privacy rights.  And Arizona litigators should take up the call to bring state constitutional claims along with their federal counterpart.   


*Jon Riches is the Director of National Litigation at the Goldwater Institute